BVA9507119 DOCKET NO. 93-12 832 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Wichita, Kansas THE ISSUES 1. Entitlement to service connection for bilateral hearing loss. 2. Entitlement to service connection for tinnitus. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Christine E. Puffer, Associate Counsel INTRODUCTION The veteran had active service from February 1943 to December 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 1993 rating decision of the Department of Veterans Affairs (VA) Wichita, Kansas, Regional Office (RO) which denied entitlement to the benefits sought on appeal. CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that he was exposed to acoustic trauma in service which has resulted in his current hearing disabilities. He notes that he was seen on sick call numerous times while in service for hearing loss. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence supports the granting of service connection for bilateral hearing loss and tinnitus. FINDINGS OF FACT 1. All evidence necessary for an equitable adjudication of the instant claim has been obtained by the RO. 2. The veteran was exposed to acoustic trauma in service with which his current bilateral sensorineural hearing loss can be reasonably associated. 3. The veteran experiences constant, bilateral, tinnitus which may not reasonably be dissociated from his exposure to acoustic trauma in service and the neurosensory component of his service- connected hearing loss. CONCLUSIONS OF LAW 1. Bilateral hearing loss was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1994). 2. Tinnitus is due to the service-incurred acoustic trauma. 38 U.S.C.A. §§ 1110, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The veteran contends that he experienced acoustic trauma while in service as an airplane maintenance technician. He has reported that he obtained treatment for hearing loss while in service. The veteran's service medical records have been inadvertently destroyed, and no photocopies are available for review. In order to obtain service connection, there must be both evidence of a disease or injury that was incurred in or aggravated by service, and a present disability which is attributable to such disease or injury. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. When a chronic disease is shown during service subsequent manifestations of the same disease are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). Continuity of symptomatology is required only when the condition noted during service is not shown to be chronic or the diagnosis of chronicity may be legitimately questioned. 38 C.F.R. § 3.303(b). Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310(a). On November 25, 1994, the VA published an amended 38 C.F.R. § 3.385, providing that impaired hearing will be considered to be a disability when the auditory threshold in any of the frequencies 500,1000, 2,000, 3,000 and 4,000 Hertz is 40 decibels or greater; or when the auditory thresholds for at least three of the frequencies 500, 1,000, 2,000, 3,000, or 4,000 Hertz are 26 decibels or greater; or when speech recognition scores using the Maryland CNC Test are less than 94 percent. 59 Fed. Reg. 60,560 (1994) (to be codified at 38 C.F.R. § 3.385. See Heuer v. Brown, No. 93-992, slip op. at 8 (U.S. Vet. App. Feb. 7, 1995). The VA is required to apply a regulation adopted during the pendency of a case when the regulation is more favorable to a claimant, unless the Secretary has specified to the contrary. Id. quoting West v. Brown, 7 Vet.App. 70, 76 (1994). The Secretary has not so specified with respect to the amended § 3.385. In developing the instant claim, the RO was able to obtain copies of daily sick reports from the veteran's company. The veteran has reported that he obtained treatment for hearing-related complaints in service on various occasions. Reports from November 1944 to July 1945 were searched. It was revealed that the veteran had sought treatment during the months of March through May 1945 on eight separate occasions. The records fail to indicate what the veteran's complaints were, and what the treatment consisted of. The veteran has failed to report what, if any, treatment he has received for hearing complaints since his separation from service. However, the Board observes that in a January 1987 statement he indicated that he was "in need of hearing aids." At the time of a July 1992 VA examination, the veteran reported a history of gradually progressive hearing loss which began in 1944, with an onset of tinnitus in 1982. He recounted that his work as an aircraft engine mechanic in service involved working around extremely loud aircraft engines and propeller noise for two years. The veteran noted that he had worn a hearing aid in the past, and was no longer wearing it because it was malfunctioning. He reported that his tinnitus was constant and bilateral, and had recently increased in intensity, disrupting his sleep. Audiological evaluation that date revealed pure tone thresholds, in decibels, as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 45 50 50 60 55 LEFT 75 65 50 60 70 Speech audiometry revealed speech recognition ability of 80 percent in the right ear and of 52 percent in the left ear. The examiner concluded that the veteran displayed bilateral, moderate to severe, hearing loss which was sensorineural in the right ear and for the mid to high frequencies for the left ear. The veteran was a candidate for binaural amplification. In applying the amended § 3.385 to the above clinical findings, the Board concludes that the veteran has manifested a hearing loss in both ears, as that disability is defined for VA compensation purposes. The crux of the issue, however, is whether the demonstrated bilateral hearing loss can be reasonably related to the veteran's service. Through no fault of his own, the veteran's service medical records are unavailable. The daily sick reports that have been obtained corroborate his contention of seeking medical treatment while in service, but fail to provide any details as to the reported complaints and treatment provided. The claimant is to be accorded the benefit of the doubt when the positive and negative evidence with respect to the merits of an issue material to the determination of the matter is evenly balanced. 38 U.S.C.A. § 5107(b). Where, as here, service medical records are presumed destroyed, the Board's obligation to explain its findings and conclusions, and to carefully consider the benefit- of-the-doubt rule is heightened. Allin v. Brown, 6 Vet.App. 207, 214 (1994); O'Hare v. Derwinski, 1 Vet.App. 365, 367 (1991). The veteran's separation qualification record reflects that he served as an aircraft maintenance technician, performing daily inspections of aircraft and group equipment, as well as performing repair work. The Board therefore concludes that there is clear evidence that the veteran experienced acoustic trauma in service. In light of his contentions of in-service treatment for hearing-related complaints and of the associated evidence of his receipt of medical treatment in service, the Board finds that the benefit of the doubt is to be accorded the veteran, and that service connection for bilateral hearing loss is warranted. The veteran has indicated that his tinnitus is proximately related to his bilateral hearing loss and acoustic trauma. The veteran has bilateral hearing loss which is sensorineural in nature, and, thus, involves a neurosensory component. On recent VA examination the examiner cited the veteran's report of constant, bilateral, tinnitus. As noted, the veteran has clear evidence of sustained and repeated acoustic trauma in service. The Board concludes that the etiology of the veteran's tinnitus may not reasonably be disassociated from the acoustic trauma experienced in service. Consequently, in according the veteran every benefit of the doubt, service connection for tinnitus as secondary to acoustic trauma in service is warranted. See 38 C.F.R. §§ 3.102. ORDER Service connection for bilateral hearing loss is granted. Service connection for tinnitus is granted. WARREN W. RICE, JR. Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.